Ming Li Wang and Comcare

Case [2012] AATA 242

[2012] AATA 242

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/2711

Re

Ming Li Wang

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Deputy President J W Constance
Date 27 April 2012
Place Melbourne

1.The reviewable decision of Comcare made on 6 May 2010 is set aside.

2.In substitution it will be decided that in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay to Ms Wang compensation in respect of the injury, being Adjustment Disorder with Anxiety and depressed Mood, suffered by her on 16 March 2009.

........[sgd J W Constance]...............

Deputy President J W Constance

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14(1), 5A(1), 5B and 14 – reasonable administrative action taken in a reasonable manner – reasonable counselling action – lack of evidence that reasonable administrative action contributed to illness to a significant degree – decision set aside.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14(1), 5A(1), 5B and 14

CASES

Comcare v Sahu-Khan [2007] FCA 15

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Wiegand v Comcare [2006] FCA 1620

REASONS FOR DECISION

Tribunal:         Deputy President J W Constance

Date:              27 April 2012

INTRODUCTION

  1. Ms Wang is an Export Grants Auditor employed by the Australian Trade Commission. 

  2. In 2009 Ms Wang suffered Major Depression which, after treatment, became an Adjustment Disorder with Depressed Mood. Ms Wang has claimed compensation in respect of this injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare has rejected the claim and Ms Wang has applied to the Tribunal to review this decision.

  3. For the reasons which follow Comcare’s decision will be set aside and it will be decided that Ms Wang is entitled to compensation in respect of the injury suffered by her.

    BACKGROUND

  4. Comcare agrees that the condition in respect of which Ms Wang makes her claim is a disease contributed to in a significant degree by her employment.  I am satisfied that this is a proper concession on Comcare’s behalf.

  5. Under the Act, an injury for which compensation is payable “does not include a disease … suffered as a result of reasonable administrative taken in a reasonable manner in respect of the employee’s employment.” [1]  Comcare argues that Ms Wang’s condition was suffered in part as a result of the conduct of Ms Wang’s supervisor, Mr Parker, at a meeting with Ms Wang on 13 March 2009.  It is argued further that Mr Parker’s action at this meeting was reasonable administrative action carried out in a reasonable manner in respect of Ms Wang’s employment.

    [1] Subsection 5A(1).

  6. There is a substantial evidence before me as to a number of events which took place in Ms Wang’s workplace from 2007 onwards and it is necessary to make some findings in relation to those events to provide the setting in which Ms Wang developed the condition from which she now suffers.  However Comcare relies only on the action at the meeting of 13 March 2009…

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Ming Li Wang and Comcare [2012] AATA 242
Case
[2012] AATA 242
Decision Date

CaseChat Overview and Summary

The case involves Ms Ming Li Wang, an employee, and Comcare, which provides compensation for federal public sector employees. The dispute centers on whether Ms Wang's employment-related condition qualifies for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Ms Wang claims she suffered an injury due to reasonable administrative actions taken by her supervisor, Mr. Parker, which Comcare argues exempted her from compensation. The Administrative Appeals Tribunal was tasked with deciding the legal issues surrounding the definition and application of "reasonable administrative action" as it pertains to the compensability of Ms Wang's condition.

The primary legal issue was whether the actions taken by Ms Wang's supervisor, Mr. Parker, constituted "reasonable administrative action" that exempted her from compensation under the Act. The Tribunal had to interpret the statutory provisions and determine whether Mr. Parker's actions were indeed reasonable and if they contributed significantly to Ms Wang's condition. The interpretation of "reasonable administrative action" and the threshold of "significant degree" in contributing to the disease were central to the decision. The Tribunal examined the evidence and found that while some actions could be considered reasonable administrative action, there was insufficient evidence to conclude that these actions significantly contributed to Ms Wang's condition.

The Tribunal found that while Mr. Parker's actions could be classified as reasonable administrative action, there was no evidence to support that these actions contributed significantly to Ms Wang's condition. The Tribunal concluded that Comcare's decision to deny compensation was not supported by the evidence and set it aside. Instead, the Tribunal found that Comcare is liable to pay compensation to Ms Wang for her injury, Adjustment Disorder with Anxiety and depressed Mood, as it was contributed to by her employment to a significant degree. The Tribunal's reasoning hinged on the lack of evidence linking the administrative actions to Ms Wang's condition, thereby fulfilling the statutory requirement for compensation under the Act.

In conclusion, the Tribunal set aside Comcare's decision and determined that Comcare is liable to pay compensation to Ms Wang for her employment-related condition. The Tribunal's decision underscores the necessity of substantial evidence to link administrative actions to the claimed injury and highlights the importance of interpreting statutory provisions in line with the legislative intent.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow Comcare’s decision will be set aside and it will be decided that Ms Wang is entitled to compensation in respect of the injury suffered by her.BACKGROUND Comcare agrees that the condition in respect of which Ms Wang makes her claim is a disease contributed to in a significant degree by her employment. I am satisfied that this is a proper concession on Comcare’s behalf. Under the Act, an injury for which compensation is payable “does not include a disease … suffered as a result of reasonable administrative taken in a reasonable manner in respect of the employee’s employment.” [1] Comcare argues that Ms Wang’s condition was suffered in part as a result of the conduct of Ms Wang’s supervisor, Mr Parker, at a meeting with Ms Wang on 13 March 2009. It is argued further that Mr Parker’s action at this meeting was reasonable administrative action carried out in a reasonable manner in respect of Ms Wang’s employment.[1] Subsection 5A(1). There is a substantial evidence before me as to a number of events which took place in Ms Wang’s workplace from 2007 onwards and it is necessary to make some findings in relation to those events to provide the setting in which Ms Wang developed the condition from which she now suffers. However Comcare relies only on the action at the meeting of 13 March 2009 as being action which excludes Ms Wang’s condition from the description of a compensable injury. LEGISLATION Subsection 14(1) of the Act provides:Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. In subsection 5A(1) the relevant definition of injury is as follows:(1)In this Act:injury means:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Disease is defined in section 5B which reads:(1)In this Act:disease means:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a)the duration of the employment;(b)the nature of, and particular tasks involved in, the employment;(c)any predisposition of the employee to the ailment or aggravation;(d)any activities of the employee not related to the employment;(e)any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3)In this Act:significant degree means a degree that is substantially more than material.EVIDENCE AND FINDINGS OF FACTMs Wang’s evidence

Evidence

Evidence Before The Court

Part of Mr Parker’s evidence was as follows:10. Informal counselling of the Applicant commenced in October 2008, when more complaints came in regarding her conduct and style of audits. I personally visited a number of the complainants to investigate the complaints. I considered that most of the complaints were well-founded and were based on the Applicant’s failure to listen to clients, give them an opportunity to present their case, and/or the fact she sought an enormous amounts (sic) of information, far beyond what was considered reasonable. I then discussed with the Applicant my findings and demonstrated to her how audits should be done. I was accompanied by Steve Giles, our Special Investigator who examines potential fraud cases, on some of these visits, who also counselled the Applicant on how an effective audit needs to be undertaken. I gave the Applicant a framework to follow and placed time limits on the audits in an attempt to modify her behaviour.11. I sent the Applicant an email on 29 October 2008 …[Exhibit A1 pp.93-94] providing advice on dealing with clients including that she must deal sensitively with questions about the viability of the businesses and that she should not raise her voice during the assessments. …12. The Applicant responded by email dated 6 November 2008 … [Exhibit A1 p.95] and expressed concern about a number of issues including not checking expense items for a phone audit. ……16. On 11 March 2009, I received an email from Paul Wan … [Exhibit A1 p.133]. After attending a number of audits with the Applicant, he remarked that the Applicant was still taking too long on her audits, was not professional enough in her approach to the client and not seeking to develop a rapport or learn about the client and their business. Paul stated that he told the Applicant that she needed to start performing her job in a manner that EMDG required it to be done if she is to have a long term career with the ATC.17. I conducted a meeting with the Applicant on 13 March 2009 to assess the current situation regarding performance and to set in place a clear strategy to address those issues. I advised the Applicant that the situation needed to improve or further action would be taken. At this stage, the performance management process was still regarded as informal. We discussed several areas in which the Applicant needed to show improvement, including limiting the time of telephone and in-person assessments, focussing only on material items, and accepting statements on face value, particularly when coming from an experienced and honest exporter.18. I advised her that she was to be accompanied on all of her visits to ensure that she continued to receive support to meet the standards required. We were to review the situation again in a month, however, the Applicant went on sick leave shortly after the meeting and did not return to work. [17]I accept this evidence.[17] Exhibit R2.Health professional evidence and opinion Neither party called any oral evidence from any of the health professionals who have treated and/or assessed Ms Wang.Report of Dr Chiang, General Practitioner

Decision

Reasons for decision

I have considered the various actions taken by the Commission in relation to Ms Wang’s employment in the years leading up to the events of March 2009. I am satisfied that a number of those events are properly classified as “reasonable administrative action taken in a reasonable manner”. However there is nothing in any of the evidence of the health professionals to enable me to find that any one or more of these events made a significant contribution to the claimed injury.CONCLUSION The reviewable decision of Comcare made on 6 May 2010 will be set aside. In substitution it will be decided that in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay to Ms Wang compensation in respect of the injury, being Adjustment Disorder with Anxiety and depressed Mood, suffered by her on 16 March 2009.

Ratio Decidendi

Legal Principle Established

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